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Are Wiretapping Laws Helping Criminals?

The recent debates over wiretapping are not new, as this film “Are Wiretapping Laws Helping Criminals?” demonstrates. Broadcast as an episode of All America Wants to Know, this segment features a debate about an issue that is as relevant to the ACLU today as it was during this 1962 broadcast.

In addition to Senator Keating, this episode’s panel featured Senator John A. Carroll (D-CO), Virgil W. Peterson, the Operating Director of the Chicago Crime Commission; Frank O’Connor, Queens County District Attorney; and Lawrence Speiser, Director of the American Civil Liberties Union’s Washington, D.C. office.

In 1962, the legality of wiretapping was unclear, and the issue’s privacy issues were far from settled. Olmstead vs. United States (1928) had declared wiretapping did not amount to search and seizure, but portions of the Communications Act of 1934 had been interpreted to mean that wiretapping could be deemed illegal under various circumstances (ACLU: Subject Files Series, box 1096, folder 19). The issue was further complicated in states that had legal telephone surveillance (such as New York) because Benanti v. United States (1957) declared that evidence gathered by state officials, in a state where wiretaps were legal, would not be admissible in federal court. The questionable legality of tapping, however, did not stop the FBI from intercepting telephone calls of numerous individuals and organizations, most notably Dr. Martin Luther King Jr.

In “Are Wiretapping Laws Helping Criminals,” Keating argued that wiretapping was a necessary tool to combat organized crime and subversive groups. O’Connor and Peterson argued that the practice was successful because there had never been a documented complaint against prosecutors or police who had legally intercepted telephone conversations. The few complaints they knew of were generated from illegal instances of wiretapping or were filed against police who had used evidence obtained via telephone interception for blackmail purposes.

On the other side, Speiser and Carol argued that wiretapping presented a slippery slope, and that even with the limitations of Keating’s bill, widespread wiretapping would lead to abuses of power. Furthermore, Carol noted that Keating’s legislation was too broad, potentially giving both federal agents and states that did not have laws specifically prohibiting wiretapping the authority to do it legally. Speiser stated that even with a court order, the issue was still a privacy violation, because unlike with a search warrant, the individual tapped is not informed of the tap, and thus any intercepted conversation could lead to violations of privileged speech, such as between a husband and wife, doctor and patient, or attorney and client.

Speiser’s arguments epitomize the ACLU’s position of the early 1960s. While the Union had a long track record of opposing wiretapping, 1961 marked a turning point. In April of that year, the Union adopted the recommendations of their Due Process Committee, which suggested a policy of always opposing pro-wiretapping legislation (ACLU: Organizational Matters Series, box 209 and ACLU: Subject Files Series, box 1096), with the concern that wiretapping was unconstitutional and a violation of privacy. This amended an earlier stance, where they believed it could be legal and permissible under certain circumstances. Even today, the Union takes a strong interest in arguing against the interception of communications, most notably during their opposition to the NSA’s position on electronic communication surveillance during the 2008 FISA reform.

The collections of Mudd’s Public Policy Papers have a variety of sources related to wiretapping and intercepting telephone conversations. More information can be found in: